Lawsuit alleges Jefferson volunteers lacked training

BELLVILLE – The volunteer firefighter who lost both legs when one tanker truck rolled into another at a house fire fought by several neighboring departments says the Jefferson Township-Bellville Fire Department failed to provide enough safety training to its volunteers.

The Fifth District Court of Appeals will be asked Thursday to decide whether a Richland County judge made a legally sound ruling when he released Jefferson Township-Bellville Fire Department fire Chief Craig Roberts and Jefferson township trustees from liability in a pending lawsuit.

Josef "Joe" Tadijanac, a Washington Township volunteer firefighter, was stationed at the rear of a Troy Township Fire Department tanker, at a mutual aid house fire at 3695 St. James Road on June 24, 2012, when a tanker belonging to Jefferson Township-Bellville Fire Department rolled forward. Tadijanac, who suffered crushing injuries, had to have both legs amputated and is now legally blind.

He brought a lawsuit seeking damages from the Jefferson Township-Bellville Fire Department; Jefferson trustees; Jefferson fire chief Roberts; and Scott Gerhart, the Jefferson volunteer who had been driving the tanker that rolled forward. Jefferson Township volunteer Isaiah Finley, also initially named, was dismissed earlier this year by the plaintiffs as a defendant.

On March 14, Richland County Common Pleas Court Judge James DeWeese granted the Jefferson-Bellville fire department and Jefferson Township trustees governmental immunity — also ruling that Chief Roberts, as a township employee who was not present at the fire, could not be sued.

Tadijanac has appealed. A panel of three judges will hear from both sides Thursday.

No matter who prevails, a trial could go forward. In his ruling, DeWeese said a jury could still decide whether Gerhart, as driver of the Jefferson-Bellville tanker, engaged in "willful and wanton misconduct" at the accident scene (making money damages a possibility).

The Ohio Bureau of Workers Compensation has asked to recoup up to $2 million from any court award to Tadijanac. The bureau said it spent $494,662 for medical payments and $428,314 for compensation, and expects more than $1 million in future medical costs or lost wages.

Both sides say mistakes were made the day of the accident — but differ on extent of fault.

Sides see it differently

The mutual house fire occurred in Troy Township, with Washington and Jefferson-Bellville providing mutual aid. Troy Township, in control of the scene, asked Jefferson-Bellville to transfer water from Jefferson Tanker 121 into Troy Township Tanker 145, which had run dry.

Fire Chief Roberts testified that Tanker 121, weighing at least 36,000 pounds fully loaded, was the only vehicle in Jefferson's fleet that could rev up in a gear other than neutral — increasing rpms while in drive to increase water pressure but "creating a far greater risk of the vehicle lurching forward out of its "sitting" position, Tadijanac's attorneys said.

"We knew it could pump and roll," they quoted the chief as saying in a deposition.

Attorneys for the township argued Tanker 121 was meant to shuttle water and said that quirk made the vehicle more versatile. While it was meant to be left in neutral at fire scenes, it could be left in drive after parades and driven forward while water was pumped to wash the streets.

In an accident report prepared for Takijanac's attorneys, Mark A. Schockman of Fire Science Investigations said Tanker 121 arrived on scene and was positioned by driver Scott Gerhart 10 to 20 feet behind Troy Tanker 145. All three Jefferson firefighters exited the cab and prepared to transfer water into the Troy Township's tanker.

Tadijanac was at the rear of Troy's tanker, assigned to monitor and control water flow.

According to Schockman, Gerhart began transferring water. After firefighters asked for more pressure, he'd begun increasing engine rpm for Tanker 121, using a pump panel control knob, when the tanker suddenly began moving forward up a slight incline. Gerhart activated an emergency shutdown of the throttle while firefighter Isaiah Finley opened the driver cab door and slammed the foot brakes and put the tanker in reverse to free Tadijanac, according to Schockman's report.

Schockman said the Ohio Highway Patrol determined the tanker moved forward because it was in drive. As rpms increased, the transmission applied torque to the tanker's rear wheels, "ultimately exceeding the parking brake's ability to keep the tanker stationary," he wrote.

Wheels 'not chocked'

Various fire officials testified Tanker 121's wheels had not been "chocked" to prevent the vehicle from moving.

Tadijanac's attorneys, Kathy A. Dougherty and Keri Yaeger of Columbus, contend that National Fire Protection Association standards have "for decades" called for applying parking brakes, then chocking wheels at an emergency scene, for all heavier fire department vehicles.

"This failure to institute such a well-known, critical procedure in the face of obvious knowledge of the danger posed by a 38,000-pound tanker breaking loose shows a failure ... to exercise any care whatsoever toward the safety of those in the tanker's path," they argued.

Rodney Walker, Jefferson fire chief from 1960 to 2008, told attorneys the township was not an NFPA member.

Attorneys for the townships said wheel chocks never were used on Tanker 121 before the accident — and no Jefferson vehicles even came equipped with them, except for one rescue vehicle that came with them on its purchase. And rescue engines have a different mode of operation — normally sitting stationary at a fire scene, while tank trucks are moved around to shuttle water, they added..

Though the lawsuit criticizes not using chocks, "standard operating procedures fall within the fire chief's discretion," and there is no law in Ohio that mandates use of chocks, township attorneys wrote. What's more, Gerhart himself should not be faulted for failing to use chocks, because there were none on the truck, they said.

Tadijanac's attorneys quotes Jefferson-Bellville assistant chief Steve Strickling as testifying it had been the policy for 22 years in Mansfield, where he is now chief, to chock its vehicles.

The accident

Township attorneys said standard procedure for operating the pump on Tanker 121 was to set the airbrake, put the truck in neutral, use a power take-off switch to activate the pump, and exit the cab to operate pump controls at the side.

Gerhart, who had driven the tanker many times, testified he set the parking brake before leaving the cab, and thought he left the tanker in neutral.

Attorneys for Tadijanac say investigators concluded the tanker must have been left in drive.

Township attorneys said when Gerhart, a volunteer firefighter since 1980, was asked to transfer water to a Troy tanker, he questioned the procedures as it's not standard for his department. But when the request from Troy Township was repeated, Gerhart pulled up behind Troy's truck so a hose could connect the two, attorneys said.

When Gerhart was asked to increase water pressure, and the tanker suddenly surged forward, he immediately hit a release button to slow the rpm to idle. Then both he and Finley scrambled to try to get to the brakes to stop the tanker, township attorneys said.

"Gerhart was at an active fire scene on a mutual aid response and working with unfamiliar surroundings and/or colleagues," attorneys Kenneth Calderone and John Chlysta wrote. "Despite reasonable diligence, the stress and intensity of such situations may lead to human error and accidents."

Gerhart received about $4 per call — barely covering gasoline costs for trips to and from the station — and "isn't making a profit or supporting his family by volunteering," the township attorneys argued.

Ohio law provides immunity to volunteers, and their work shouldn't be discouraged by the prospect of personal liability for ordinary actions while fighting fires, they argued.

"Assuming Gerhart accidentally left Tanker 121 in drive when he exited the truck cab, such an act was at best negligent — not reckless or wanton," they told the court. "What happened was by all accounts a mistake — a tragic mistake, but a mistake nonetheless," they wrote.

Lack of training alleged

In pretrial testimony, chief Roberts said Jefferson-Bellville was "probably the only volunteer fire department left around here that is actually a true volunteer department," operating with himself and two paid assistant chiefs.

Roberts testified that training on the proper operation of vehicles consisted of putting firefighters through a maneuverability course for each vehicle, then a "proficiency" demonstration.

However, "There was no designated test for proficiency, no officer designated to be in charge of testing proficiency, no checklist of subject matters in which the firefighter must demonstrate proficiency, no written certification that a firefighter has passed the proficiency test for any particular vehicle, and no list kept of which firefighters had been deemed proficient on which vehicles," Tadijanac's attorneys countered.

Jefferson fire officials said training was held monthly. But "not one officer could provide a syllabus, or any example of what material was presented, how it was presented, or what research/preparation went into the designing of the training session," Schockman's report said.

His accident analysis said Gerhart had attended 18 training sessions over three years prior to the accident, and clearly was willing to take part.

"Unfortunately, he also displayed a general lack of understanding as to how the tanker functioned," Schockman wrote.

Tadijanac's attorneys argued the department had training resources that weren't utilized. "Despite being allocated a training budget of $30,000 in 2008 and $15,000 in years 2009 to 2013, there was not a single year in which Chief Roberts spent even a third of that allocation," the attorneys said.

In their appeal of DeWeese's ruling releasing the township and fire department of direct liability, attorneys for the injured firefighter argued that Jefferson Township trustees were too far removed from fire department activities.

Trustees made no effort to control appointments for assistant fire chiefs or captains; accept or reject firefighter applications; establish a job description for the chief; or promulgate any type of fire department employee handbook, they said in briefs to the court.

"There is not a shred of evidence presented by defendants as to how the trustees exercised any care whatsoever to prevent what happened to Joe," the plaintiff's side said.

Tadijanac's attorneys contend trustees set few, if any, requirements in choosing a chief.

"There is no written job description. There was no advertisement for the open position of chief," they told the court.

But township attorneys said trustees, who had no expertise in firefighting, rightly delegated decisions on day-to-day operations to the chief, rather than "micromanage" those activities.

The chief, who had been with the department 36 years, and as chief since 2008, kept trustees apprised, attending all trustee meetings, they said.

At the Fifrth District Court of Appeals hearing Thursday, Tadijanac's attorneys may elaborate on their argument that Jefferson Township and the Jefferson-Bellville Fire Department, between them, allowed for a situation to exist that "created a great probability that such an accident would occur."

Township officials are likely to argue that while an accident occurred, Jefferson Township personnel are entitled to immunity under Ohio law.

"The accident occurred at a fire scene, and none of the defendants acted willfully or wantonly," they wrote.